Justice Department lawyers on Friday will ask a federal appeals court to allow the Obama administration’s executive actions on immigration to proceed while the DOJ appeals a federal judge’s decision to block the controversial measures.
The policies, which were announced with great fanfare in November, intend to shield as many as 5 million undocumented immigrants from deportation. But in February, U.S. District Judge Andrew Hanen in Brownsville, Texas, temporarily stopped the actions from going into effect when he issued a nationwide injunction on the grounds that the administration did not provide a longer notification and comment period before taking action.
Lawyers for the Justice Department are scheduled to appear before the 5th Circuit Court of Appeals in New Orleans, where they will ask the three-judge panel to allow the programs to go into effect while Hanen’s ruling is appealed. It will be an uphill climb for the programs’ supporters, made worse by the fact that two of the judges are Republican appointees who may be hostile to their position.
“It’s an unfortunate draw for the administration here,” said Ian Milhiser of the progressive Center for American Progress.
The policies are being challenged by Texas and 25 other states that argue that the measures amount to a “massive new program that dispenses with immigration law and grants work permits and lawful presence status” to “millions of unauthorized aliens.” Texas argues that issuing driver’s licenses alone will cost the state millions of dollars.
The DOJ counters that the preliminary injunction is a “sweeping order that extends beyond the parties before the court” and harms the government’s ability to marshal its resources and protect “border security, public safety and national security.”
In court papers, the DOJ argues that funding only allows for the removal of a fraction of the estimated 11.3 million undocumented immigrants who are present in the United States. The DOJ says that the administration decided to defer, for a limited time, the removal of undocumented immigrants who are low priorities. As such, the federal government broadened eligibility criteria for them to be considered under a 2012 program called Deferred Action for Childhood Arrivals, which permits teenagers and young adults, who were born outside of the United States but raised in the country, to apply for deferred action status and employment authorizations. They also hope to implement another program called the Deferred Action for Parents of Americans and Lawful Permanent Residents.
Hearing the case will be Judge Jerry Smith, appointed to the bench by President Ronald Reagan, Judge Jennifer Walker Elrod, a George W. Bush appointee, and Judge Stephen A. Higginson, who was appointed by President Obama.
The panel is unlikely to rule from the bench, and could take weeks to issue an opinion.